because it would define what a journalist or journalism is, but it's really needed to prevent stuff like this.

this country. Most of the media today is run by corporate interests, and that creates a conflict of interest in my view, especially with the communications act of 2000

and ultimately controlling the content by staffing decisions.

Protection from something that most of us are vulnerable to would be a special thing indeed. I'm thinking it would require membership similar to the US military.

expires as soon as the next funding bill takes hold

We need respect for the First Amendment.

Let's review the precise wording of the First Amendment:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

http://www.law.cornell.edu/constitution/first_amendment

The First Amendment is often said to guarantee our rights. That is a bit incorrect. The First Amendment PROHIBITS our Congress (the only branch of our federal government authorized to make laws) from passing laws that abridge, meaning curtail, lessen, narrow, our freedom of the press.

Note that the freedom of the press is not given to us by the Constitution or by Congress. Freedom of expression, of speech and of the press are our innate rights with which we are born.

Therefore, Congress does not have the authority to pass a law that could limit either our freedom of speech, or the press. Thus Congress lacks the authority to define the press or our speech.

Further, the journalism profession, especially today, is a big joke. The reporting prior to and during the Iraq War, and the excessive reporting about Hollywood celebrities is proof that the reporting in our media is a bunch of ignorant bunk.

Should Fox News be shielded because there is enough money behind it to purchase the status of journalism?

Should I lack a shield because I don't have the money to buy the status of a journalist?

I know this sounds like bragging, but if you saw my resume, you would know that I am far better qualified to talk about the world than 95% of the so-called journalists who write and report and talk about the news. Certainly better qualified than the Fox so-called journalists.

Benjamin Franklin did not have a degree in journalism. But if you know anything about him, you know that he was a self-appointed journalist who helped change the world. He published a newspaper.

A federal shield law would be the equivalent of requiring a license to report or write about the news. That would violate our rights to free speech and a free press.

No to a federal shield law. Let the people define what is "press" and what is not. Let the market decide as they say. The government should stay out of it.

Let's keep the government out of the business of licensing the press.

And while we are at it, let's keep net neutrality for the reasons I stated above.

The marketplace of ideas should be a market full of all kinds of ideas, not a place where the ideas with the most financial backing are protected and those without that backing are not.

from our court system. If someone has knowledge or evidencethat reflects upon the guilt or innocence of an accused person, they have to share it with the government.


That's why we need a shield law on the federal law, just as there exists one in most states.

The idea that a shield law is unconstitutional is pure bunk. A shield law would restrict no one's rights of expression, it would only extend privileges to some.

That is something to avoid.

because you are not going to get a law essentially abolishing subpoenas and forbidding the government from compelling testimony from all citizens.

Courts do not write laws. They merely enforce them. If Congress can make no law abridging the freedom of the press, the court has no law to enforce and cannot issue a subpoena. A court should quash a subpoena that violates the First Amendment.

of information would violate the first amendment.

I think there were always libel and slander laws - which if you interpret it as broadly as you can would not be allowed to exist.

I do think that Journalists should have protections - even Glen Greenwald. I think that Risen is far better hero than the flawed Snowden. It was Risen who first found that the Bush administration had pushed the telecos to give them the data before it was legalized by FISA 2008. It is only because things seem to go into memory holes that many think the domestic spying that Snowden leaked was all new information.

It is interesting that the Republican version of FISA 2008, the one that passed, contained retroactive immunity for the telecos - but not Risen or his source.

with the corporately bought off impartial justices that comprise our 'supreme' court. BS!!!!!!

I am speechless. The First Amendment out the window.

with government subpoenas?

Subpoenas can be quashed.

a free press.

The First Amendment prohibits the government from deciding what may or may not be published.

If a court can subpoena a the names of a journalist's sources, it can hinder the journalist's freedom to publish what the journalist wants to publish. The government does not have the authority to tell a journalist that he or she cannot publish information that is not libelous.

The government has the responsibility to take good care of its secrets.

Sounds like you're endorsing a shield law or in the alternative having judges legislate such a definition from the bench.

Would you rather have the courts or the legislature hammer out this kind of definition?

The First Amendment protects the presses right to PUBLISH information, not to shield potential criminals. I know the argument is that reporters will have difficulty getting sources to talk if the reporter doesn't have legal protections, but I am not at all comfortable with "journalists" basically getting immunity from laws us other peons have to follow.

I'm conflicted on this issue.... convince me.

where do you draw the line? And who draws it? To me, it is pretty clear that the First Amendment gives the government no authority to decide what is published and that it therefore precludes the government from forcing a journalist to identify his sources.

Correct. The freedom to publish extends to the freedom to write and the freedom to obtain information without government interference. What else could it mean?

Again here are the words of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

http://www.law.cornell.edu/constitution/first_amendment

The First Amendment says nothing about publishing. It prohibits Congress (the only part of the government authorized to enact laws) to "make no law . . . . abridging the freedom of the press."

The First Amendment is not limited in its scope to what may be published. It prohibits the government from abridging, a broad, general term meaning limiting, the freedom of the press.

The press nowadays includes all the media, not just publishing. And it certainly does not refer only to what the press says or writes. If that were true, we would not also need the freedom of speech.

The First Amendment guarantees the freedom of the press to retrieve and disseminate any information it can.

Good heavens. Haven't you read any of the writings of the Founding Fathers. They were a pretty liberal bunch for their time. Before I get a thousand responses reminding me of slavery and the lack of rights of women, I will say that they went as far as they could go considering their time.

.... You seem to be advocating that "journalists" (however you determine what a legitimate journalist is), basically can decide that any law they consider to be "interfering" with their freedom can be ignored.

I mean, what if a journalist makes contact with a serial killer, and the serial killer agrees to give the reporter an exclusive, so long as the journalist doesn't reveal his identity. Is that legit? If there's a line, where is it?

IMO, the "press" doesn't get to violate any law which applies to anyone else.

But the journalist does not have to honor a promise to a serial killer either.

In this case, the journalist does not want to testify. That's the journalist's prerogative when it comes to government information that the government classifies as "secret" to prevent us from knowing it.

We have far too much secrecy and far too little intelligent, critical reporting in our country.

That is precisely what the Founding Fathers wanted to avoid when they added the First Amendment to the Constitution.

An ignorant people is easily tyrannized. And too much secrecy makes a people ignorant.

Times change. So do Supreme Court holdings.

The First Amendment provides that the freedom of the press may not be abridged. Part of that freedom is the freedom to obtain information and protect sources.

"Congress shall make no law . . . . ."

The Branzburg v. Hayes decision is simply wrong.

Like many other Supreme Court decisions.

If we had a Supreme Court that upheld the Constitution, we would not have the Branzburg decision.

We used to have Supreme Court decisions that upheld slavery and other draconian violations of human rights.

The Supreme Court justices have been wrong before and are wrong about the freedom of the press.

Subpoenas should only be issued if in compliance with the First Amendment.

The press, like religion, is sacrosanct. If the subpoena had to do with some financial misdeeds of a newspaper, that would be a different manner. But this subpoena is intended to interfere in a reporter's ability to acquire and print the news.

Think of the outcome if our executive branch could declare just about any embarrassing fact to be a secret and then issue subpoenas to obtain the names of sources for news stories about the embarrassing facts that have been declared to be secret?

We would have little left of our freedom or our representative government. And that is what is at stake in the Risen case.

I have little sympathy for Risen's revealing the particular secret that he revealed, but the First Amendment is more important to our nation than finding out who told Risen that secret.

Let's say a judge issues a subpoena for attorney-client privileged information or doctor-patient information or in certain circumstances medical records or tax records or any other records.

Apparently a lower court has ruled that this subpoena is OK and the Supreme Court has refused to hear the case. Risen will have to either go to jail for contempt or depend on public opinion to support him so that the subpoena is withdrawn.

I suspect that he will go to jail for contempt because public opinion will be hard to get on his side since his release of the specific information he released is understandably pretty generally condemned.

Still, I stand by the principle that I state about the First Amendment protecting just about any activities of the press or what we call media including obtaining classified information and publishing it. In the past, our government has relied on journalists to exercise good judgment in what they publish. But abridging the ability of the press to obtain, possess or publish information is prohibited by the First Amendment.

What I am saying is that I do not agree with Risen's publishing what he published, but I defend his right to obtain and publish that information.

I do not agree with what he said, but I defend his right to say it.

testimony and does not violate attorney-client privilege, nor doctor-patient information.

Tell us precisely how THIS subpoena violates the First Amendment.

He's facing a subpoena demanding who gave him the information, since that person appears to have broken the law.

Taken to the extreme you seem to be taking, your position is that anyone can tell a journalist anything about anything, no matter whether it is a confidential matter protected by law, and the person disclosing the information should somehow be protected from being identified because he told it to a journalist. There may be policy reasons why, in some instances, there should be a reporters' privilege, but what you're suggesting has only the most tenuous relationship to that concept.

classified or secret information and publish it without being asked who provided the information.

We do not have transparency in our government. The Constitution guarantees freedom of the press. In fact, the Constitution prohibits Congress from passing any law that would infringe upon, or lessen the freedom of the press.

Therefore any secrecy law that would impinge upon the ability of the press (which includes a lot of publication and written communication in our time) to publish with complete freedom conflicts with our First Amendment even if it is not specifically targeted at the media or press.

The current Supreme Court has boldly (too boldly for my taste) ruled that Congress does not have the authority to regulate the expenditure of money on campaigns by corporations. In the rulings on the speech rights of corporations, the Supreme Court has taken a very expansive stance on the First Amendment. Surely it would interpret the freedom of the press as expansively as it has interpreted the freedom of the speech of all corporations. (I'm being a bit sarcastic here, but you can see that it would be inconsistent to rule that Congress cannot limit the speech rights of corporations because of the wording of the First Amendment and then to allow a court to issue a subpoena that would limit the right of the press to obtain secret information from government employees).

People on DU seem to interpret freedom of the press as merely the freedom to publish something. But the job of the press is not only to publish secret as well as easily available information fut to seek out and obtain information, even forbidden, secret information and publish it. To curtail the freedom of the press to obtain secret information is to curtail its ability to publish it.

I don't understand why this isn't obvious.

If we make journalists answer subpoenas that demand the names of their sources on stories that are embarrassing to our government or on stories involving news designated as "secret" by the executive branch, first, we will soon find ourselves in a country in which our news is all government propaganda and second, we will violate the First Amendment.

Our Constitution has been whittled down to almost nothing. It's odd to me that DUers defend the status quo on that.

Which makes your "we will soon find ourselves" fears rather overstated, imo.

Can you find a record of a subpoena served on a member of the press for a classified source prior to 1914?

The government bears the responsibility for keeping its secrets. That is not the responsibility or task of the press or ordinary citizens. That is the job of the government. When the people who are supposed to keep the secrets begin to think that the government is overstepping and keeping too many secrets or keeping illegal or wrongful acts secret, then you get whistleblowers who talk to the press about the wrongs they see.

That is a problem with the government, not with the people who blow the whistle or the press.

The people who work for the government in the jobs in which they deal with classified informatino are pretty well vetted for their trustworthiness and emotional stability.

They tend to be moral people. I would say that of Ellsberg, of Snowden and Tice and the other whistleblowers. None of them are anti-American. They are all patriots who saw things that they considered to be morally offensive violations of our rights under the Constitution.

As far as I can tell, in every case except maybe Risen's, the whistleblowers are right and the government is wrong.

We need to protect whistleblowers. And if the Congress refuses to pass laws that adequately protect them and get information to the voters that we voters need, then protecting the press is the best policy. That is what our Constitution does. It protects the press. The subpoena is a violation of the freedom of the press. The subpoena should not have been issued.

with you on this point of interpretation, and have done so for decades.

seems like your interpretation is unlikely to ever carry the day

what's your plan B?

Last edited Tue Jun 3, 2014, 03:09 AM - Edit history (1)

So was school segregation in the South.

Homosexuality? An abomination for centuries.

Female emancipation? Only reality since 1916-1918.


Our Constitution says what it says, and sooner or later, we will have a Supreme Court that can read and understand it.

I am patient. But I will say here on DU what should be obvious: The emperors on our Supreme Court wear no clothes.

you still haven't spelled out how a subpoena would violate the first amendment

The First Amendment is a watertight guarantee of the right of the press if you read its words.

There are many great jurists in America. Sadly, today members of rhe Supreme Court are not chosen for their outstanding integrity or their rigorous discipline and humility in interpreting the law, but rather for their political connections and beliefs and for their age, gender, race, etc.

It's sad but true.

for a shield law.

the only difference is that you would have judges legislate a definition of 'journalist' from the bench rather than having congress do so.

of the First Amendment when we do.

If that seems broad to you, think about the First Amendment. I can set up a table or stand on a corner in a public space and hand out brochures all day long. As long as I don't commit libel, no one can sue me provided I am not trespassing.

I've done that many times. And if I were a corporation, the Supreme Court has just ruled that I could spend as much money as I wanted on brochures supporting my favorite causes and candidates. The First Amendment prohibits our government from abridging our freedom to publish what we want.

If I set up my own printer and print a small newspaper that I hand out for free, I am protected by the First Amendment. Congress does not have the authority to pass some bill that will lessen my freedom to publish a sheet of paper and call myself part of the press. No way. The Constitution is pretty clear that Congress does not have that authority.

It seems so strange to me that people on DU would call for a bill that would license or identify or authorize certain people, certain publications as the "press" that is protected by the Constitution and exclude other "press."

If you watched Snowden's interview on NBC, Snowden criticized Russia for requiring all bloggers to register themselves. What you are suggesting is a law that would require all news media, all press to register itself in order to qualify for as "press" under the First Amendment. That is a positively horrifyingly repressive thought not worthy of a citizen in a free country.

I can't believe it. That is a law that is consistent only with an authoritarian country.

I can publish my own newspaper or my own blog or my opinions on DU. When I publish, I am part of the press like it or not.

Anyone could say, I was doing this as part of a news story I was working on, presto no subpoena.

Criminal defendants could even quash all search warrants. "Hey, those machine guns were part of a story I was working on."


Corporate America would love that. So would every terrorist hate group . Get a website, bingo you're above the law.

That will NEVER happen. There will never be a general right of all persons to conceal evidence of criminal wrongdoing. Nor should there be.

The rule is that everyone must cooperate with criminal and civil investigations. That is a good rule. The question is what exceptions are possible.

The first amendment has never and will never provide an exception of 100% of the population. Because then it would be about anarchy, not free speech.

We have shield laws in most states, and they don't require registration but rather look at whether the person was actually engaged in journalism.

So, your choice really is to protect journalist and only journalists (as would be defined by statutes, not by a registration scheme) or protect no one. I opt for the former.

This is not some rogue action by the "current' supreme court. The issues surrounding the existence and/or nature of a constitutionally based "reporters' privilege" have been debated for decades. The leading case for the proposition that there is no such constitutional privilege, Branzburg v. Hayes was decided by a 5-4 margin with Burger, Rehnquist, White, Powell, and Blackmun in the majority and Douglas, Marshall, Stewart and Brennan in the minority. While the more liberal wing of the court dissented, I don't think they thought it was an open and shut case. Indeed, Floyd Abrams, one of the leading First Amendment attorneys of our era, himself acknowledged that it was a tough case because no such privilege had ever been recognized before.

Burger -- a Republican, Nixon appointee.
http://en.wikipedia.org/wiki/Warren_E._Burger

Rehnquist -- an extreme conservative.

Rehnquist's 1952 memo, entitled "A Random Thought on the Segregation Cases", defended the "separate-but-equal" doctrine. In that memo, Rehnquist said:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

http://en.wikipedia.org/wiki/William_Rehnquist

Rehnquist's is one of a 5 to 4 court? His ideas are and were regressive.

White -- a liberal, appointed by JFK in 1962, more than a half-century ago. A lot can change in over 50 years.

http://en.wikipedia.org/wiki/Byron_White

Powell -- a conservative.

http://en.wikipedia.org/wiki/Lewis_F._Powell,_Jr.

Blackmun -- viewed as liberal especially because of Roe v. Wade but actually appointed by Richard Nixon.

Imagine a world in which Nixon's administration could have subpoenaed the names of the government informant on Watergate. Bernstein and Woodward languishing in jail to hide Nixon crimes. That is what we are talking about when we speak of subpoenaing the names of government informants to the press.

The ability of the government to prevent the press from publishing information regardless of how classified the government thinks it is cannot be permitted in a representative government or democracy.

I thought it was a case in which he was being directed to disclose the source of the information he published in a judicial proceeding.

Would Robert Novak has been subject to prison time if he had not disclosed who leaked the Valerie Plame information to him. In my opinion that was not a case of whistle blowing but was a pre-emptive political hit job. I just wonder if the same standards would apply.

There's enough to convict Sterling without Risen's testimony...Although his testimony would certainly put the case beyond all doubt...

All things being equal, Risen should be willing to go to jail on the contempt charge (without complaint) for the sake of protecting his source; since that is something all reporters know might happen with high-profile confidential sources...

But I can also see Risen's basic point that the USG already *knows* who the source is, and there's no point in going to jail to protect his identity when the day after the USG gets a conviction anyway without the testimony...